from the holy-crap dept

Early yesterday morning, I saw that Cecilia Kang at the Washington Post had a story up about the years-long fight for white spaces entitled: Tech, telecom giants take sides as FCC proposes large public WiFi networks. It struck me as odd, because so much in the article seemed... wrong or misleading. The main part about efforts to finally do something with the old TV spectrum isn't anything new at all. We first wrote about the FCC "proposing" this back in 2004 and have covered it a few times since. The FCC has been trying to use some of that TV spectrum for better, more efficient and more useful endeavors. It's been an ongoing battle that feels like it's never going to end. The short version is that TV broadcasters got a ton of free spectrum many years ago (just look at how giant chunks of the spectrum chart belong to TV broadcasters). A big part of the move to digital TV was to force broadcasters to give up a chunk of wasted, valuable spectrum that can be turned into (among other things) some useful wireless services. TV broadcasters hate this and have been fighting it in a variety of ways.

The latest version of this plan is for the FCC to do a multi-part, multi-directional "auction" process for a chunk of spectrum currently held by the broadcasters. Part of that auction would be to offer incentives to broadcasters to cough up the spectrum. And then part of it would be auctioning off whatever spectrum broadcasters agree to dump. Finally, part of it would also include designating some portion of the spectrum for unlicensed uses.

All of this is ancient history. Really ancient history. So why is the Washington Post suddenly covering this? From the article, you'd be forgiven for thinking that this is all new and that the FCC has plans for some amazing free "super WiFi." Except that's not true. At all. Well, except the part that caught most people's attention: that this would be about offering "free internet service" across the country. That part is new. And that's because it's not true. You still need backhaul and service. It's just about freeing up the spectrum so that it can be used to provide service. The FCC isn't suddenly planning to get into the broadband service ISP business. Nor could they.

Think of it this way: just because WiFi exists, it does not mean that everyone suddenly has free internet access if they buy a WiFi router at their local Best Buy. Nope. They have to connect that to a service. Same thing with anything being talked about here. More spectrum may be freed up for "open" use -- meaning more things like WiFi -- but there will still be service providers offering services over it in some form or another. Could some of them offer "free" service? Possibly. Just like you might get "free" internet access from your neighbor with open WiFi, who pays for his connection. But that's not what anyone's really talking about.

However, if you could be forgiven for thinking that this was new and amazing (and true), I don't think the same forgiveness should be given to parts of the press who ate this story up. Business Insider (apparently, without any benefit from any actual "insider") wrote a breathless piece about telcos trying to stop the government from offering super WiFi. Except... no. Others, who should have known better yet still wrote about it, included Popular Science (awful) and Mashable.

Moving to the mainstream, newswire UPI picked up the story, taking some comments from FCC boss, Julius Genachowski, out of context. He was quoted in the Post piece as saying "Freeing up unlicensed spectrum is a vibrantly free-market approach that offers low barriers to entry to innovators developing the technologies of the future and benefits consumers." But the confusion is his use of "free." He's not talking "free service" but freeing the spectrum so that anyone can offer services, like WiFi, over it without having to buy a license.

Others similarly jumped on the story without understanding it at all. The Daily Caller talked about it as if it was some new plan, as did Fox. Similarly, you had ThinkProgress and Salon chiming in on the other side of the political spectrum.

Thankfully, some spoke up in response, but even then there's still some head-scratching about this whole thing.

Karl Bode, over at DSLReports, quickly questioned Kang about the whole story, and she claimed that the story was "motivated by the new comments to the FCC" from various players both in support and in opposition of the latest spectrum auction concerning "white spaces." But... again, the auction has been planned for a while -- and it's not really about "white spaces" but adding existing "white space rules" to some of the newly available spectrum (more below). There's really nothing new here, other than some comment filings about how this auction should go down, which add little to the discussion beyond what's been said already. It's the same players saying the same thing, but just in direct reference to the upcoming spectrum auction.

Jerry Brito, over at the Tech Liberation Front, digs into the details and suggests that this whole thing involves something of a comedy of errors, with massive confusion not just over what's been going on with TV white spaces, or the new comments, or the upcoming spectrum auction... but also with a completely different band of spectrum that Genachowski spoke about last month at CES.

Parsing Kang's story a little bit more since posting this, I've become even more confused. In her tweet she says she's talking about the white spaces in the incentive auction NPRM, but those couldn't possibly be used for a nationwide wireless network since they'd be low-power Part 15 type bands. Also, unlicensed in the 600 MHz guard bands are not Chairman Genachowski's design, they were allowed by Congress when they gave the FCC auction authority. So what is Kang referring to? Most likely it is the Chairman's initiative, announced at CES earlier this month, to clear 195 MHZ in the 5 GHz band to improve Wi-Fi.... Bottom line, I think Kang conflated two separate proceedings into one big non-story that made it past the Washington Post's editors all the way to the top left corner of the front page. I hope there is a correction tomorrow.

While this actually makes some sense, I don't think that's correct either. After all, the FCC's own summary of the upcoming incentive auctions makes it clear that it views "super WiFi" as a possible outcome from the television white spaces being unlicensed:

The FCC recently developed provisions for unlicensed devices to operate on TV channels that are not used at any given locations, called "white spaces." Interference is avoided by controlling access to the spectrum through a database of protected service areas. The white spaces in the TV spectrum offer an opportunity for a new generation of products such as Super Wi-Fi and wireless broadband services for communities, particularly in rural areas. In the incentive auction proceeding, the FCC proposes to make a substantial amount of additional spectrum available for unlicensed uses. First, the Commission proposes to continue allowing the operation of white space devices in the broadcast television spectrum in the newly repacked band. In addition, the FCC proposes to make the guard bands in the new band plan available for unlicensed use. Under the plan discussed above, the two proposed guard bands would be 6 MHz wide and could be larger when accounting for the addition of "remainder spectrum" resulting from the uneven division of 6 MHz wide television channels into 5 MHz blocks. Furthermore, the FCC proposes allowing unlicensed devices to operate for the first time on Channel 37 by establishing appropriate protections for existing operations in the white space database. Taken together, the FCC's proposals will enable a substantial amount of spectrum use by unlicensed devices. A significant portion of this spectrum will be available on a nationwide basis, which is important because there currently is little or no white space in the TV bands in parts of many major markets. In making these proposals, the FCC seeks to promote greater innovation in new products and services, including increased access for wireless broadband services across the country.

The confusion, I believe, is that the FCC is talking about two different types of spectrum in the above quote, though if you're not reading carefully, you might think that it's just about the spectrum they plan to be auctioning off. That's not the case. Much of the above is actually talking about the existing TV white space spectrum that has been fought over (which is generally in the 700 MHz realm -- 698 to 806 MHz). The new spectrum auction is in the 600 MHz block (572 to 698 MHz), but as part of the discussion on this new auction, the FCC is reminding people that (a) the existing TV white spaces will remain available for unlicensed use and (b) that the new auctions should, in theory, add additional open spectrum to them (under the same rules), specifically looking at freeing up channel 37 (608 to 614 MHz) (once called "the last empty channel"), as well as portions of the so-called "guard bands" between licensed spectrum chunks, that they would like to "add" to the existing white space rules, which are supposed to minimize (or eliminate) interference problems in the white space.

The "comments" that were given by various players are really just about how the auction should run, with some discussing how much space should be allocated to such unlicensed uses. In particular, many weighed in on how much should be allocated to the "guard bands" and whether they should be attached to existing TV white space rules for interference-avoiding open spectrum. Kevin Drum, over at Mother Jones, actually has one of the better explanations for the complexities of the upcoming auctions, and the issue of guard bands:

In short, because there's that first reverse auction in which broadcasters are supposed to be incentivized to cough up existing spectrum (again, which taxpayers gave them for free...), it's not entirely clear how much 600 MHz spectrum will be available to be auctioned off to anyone. Basically, they have these two chunks, starting at 608 MHz and counting down, and another at 698 MHz and counting down -- and the total amount available will depend on how much the broadcasters agree to cough up in the reverse auction. At the "bottom" of that range, the FCC has proposed a 6 MHz guard band for each of these chunks, and making much of that subject to the existing white space rules and hopefully allowing something useful to be done with that unlicensed spectrum, especially if it's combined with other available white space. The "guard bands" are called that, as they're supposed to "guard" between interference between licensed spectrum on either side, though there's a fair bit of debate over how much space is really needed to "guard" such interference. That argument leads to some suggesting that the FCC is offering up too much for the guard bands in an effort to get more unlicensed spectrum on the market.

The fight is over how much spectrum is used for unlicensed and how much for licensed. The telcos, like AT&T, want to limit the unlicensed spectrum, while internet companies, like Google, want as much of it as possible. Similarly, there are some in Congress who are against offering very much (if any) unlicensed spectrum, taking the really dumb short term view that any unlicensed spectrum (even if it leads to tax-creating innovations) is leaving money on the table, since telcos are expected to spend billions buying up any licensed spectrum available. Again, though, that's the same old story.

In short: there's an ongoing fight about how much spectrum in newly auctioned 600 MHz spectrum will be "unlicensed," which is important for some cool things. But, that's got little to do with a magic "free" nationwide internet service. This is important stuff, but the reporting by many folks has been abysmal.

from the welcome-your-robot-overlords dept

We have talked repeatedly of automated copyright enforcement, and how it often goes too far. Recently, we wrote about over enforcement-by-bot when Google's ContentID flagged coverage of the Curiosity landing on Mars. And then there was that time when a recording of some birds got flagged as the content of Rumblefish. These are just a few examples; these stories happen all the time.

One thing that sets these examples apart from the following story is that most if not all of those videos were taken down after they were recorded. What happened just recently is a whole new category of insane. These automated copyright enforcement bots are now flagging and taking down live content. Not surprisingly, you have the same folks as usual to blame for this: an over-aggressive US government, at the behest of the legacy entertainment industry. A few years ago, after various sports leagues complained to the feds, Congress held hearings designed to put the fear of Congress into live streaming startups like Ustream and Justin.tv. In response, despite having strong DMCA compliance records (and the associated safe harbors), those companies are going above and beyond what the law requires to try to keep copyright holders (and the government) happy.

But, as with the over-aggressive automated takedowns on recorded content, the live streaming takedowns can be similarly troublesome -- and that situation can be made even worse when people are relying on an official live stream via one of these sites. That is what happened to the Hugo Awards when it tried to live stream the awards ceremonies on Ustream. After airing footage of Neil Gaiman's award winning episode of Doctor Who, the show was flagged for infringement and pulled from the live stream -- right before Gaiman got to speak. Suddenly, everyone watching the official livestream online saw:

This lit up Twitter, as tons of people were watching the show via the stream -- and suddenly you had folks like sci-fi author Tobias Buckwell, Macworld Editorial Director Jason Snell and many other high profile people complaining about the over-aggressiveness of automated copyright enforcement. What made things even worse was the fact that all clips shown were cleared prior to airing.

This was, of course, absurd. First of all, the clips had been provided by the studios to be shown during the award ceremony. The Hugo Awards had explicit permission to broadcast them. But even if they hadn't, it is absolutely fair use to broadcast clips of copyrighted material during an award ceremony. Unfortunately, the digital restriction management (DRM) robots on UStream had not been programmed with these basic contours of copyright law.

io9 has it absolutely right. Even if the clips were not cleared, they still likely fell under fair use. This is one of the major weaknesses of automated enforcement which we have repeatedly warned about. Such tools are completely incapable of determining fair use and proper licensing, yet many sites continue to use and promote their use -- often because the government and the entertainment industry insist that they must. As io9 laments in the passing of the Hugo awards:

And with that, the broadcast was officially cut off. Dumb robots, programmed to kill any broadcast containing copyrighted material, had destroyed the only live broadcast of the Hugo Awards. Sure, we could read what was happening on Twitter, or get the official winner announcement on the Hugo website, but that is hardly the same. We wanted to see our heroes and friends on that stage, and share the event with them. In the world of science fiction writing, the Hugo Awards are kind of like the Academy Awards. Careers are made; people get dressed up and give speeches; and celebrities rub shoulders with (admittedly geeky) paparazzi. You want to see and hear it if you can.

But UStream's incorrectly programmed copyright enforcement squad had destroyed our only accesss. It was like a Cory Doctorow story crossed with RoboCop 2, with DRM robots going crazy and shooting indiscriminately into a crowd of perfectly innocent broadcasts.

By killing the broadcast of the show, Ustream's bots ruined a very special occasion for a number of creative individuals. It blocked access fans of science fiction had to see their favorite writers receive the awards their craft had made possible. Such award shows are something to celebrate, but because of over enforcement, this show has become nothing but another casualty in the war on copyright infringement. Another life snuffed out in the name of "the artists." Tell me, what artist wants her name used as the reason behind an award show being snuffed out? What artist wants to be known as the reason why thousands of fans didn't get to hear Neil Gaiman's speech or the speeches of other writers as they accepted their awards?

The point is, our ability to broadcast was entirely dependent on poorly-programmed bots. And once those bots had made their incorrect decision, there was absolutely nothing we could do to restart the signal, as it were. In case anyone still believes that copyright rules can't stop free speech or snuff out a community, the automated censorship of the Hugo Awards is a case in point.

Welcome your new robot overlords internet. The robots have spoken. Copyright is the almighty mainframe from which these robots take orders. They kill indiscriminately. They kill without feeling, without remorse. Even free speech and communities are not safe. This is the world asked for by the copyright maximalists. They have set up a world in which no speech is safe as long as it contains copyrighted content, authorized or not, fair use or not.

Yet, all this is ignoring the harm that Ustream has now done to its own reputation. After this incident, why would any show or event willingly use Ustream's services to live-stream? Knowing that your show could be taken down midstream at any moment will not breed confidence in the service.

On Sunday night, The Hugo Awards were streaming live on Ustream (The Hugo’s are like the Academy Awards for science fiction). Very unfortunately at 7:43 p.m. Pacific time, the channel was automatically banned in the middle of an acceptance speech by author Neil Gaiman due to “copyright infringement.” This occurred because our 3rd party automated infringement system, Vobile, detected content in the stream that it deemed to be copyrighted. Vobile is a system that rights holders upload their content for review on many video sites around the web. The video clips shown prior to Neil’s speech automatically triggered the 3rd party system at the behest of the copyright holder.

It may be Vobile's fault, but it was Ustream's decision -- even if under pressure -- to use Vobile in the first place. It seems that they should have recognized the weaknesses of such an aggressive system.

Our editorial team and content monitors almost immediately noticed a flood of livid Twitter messages about the ban and attempted to restore the broadcast. Unfortunately, we were not able to lift the ban before the broadcast ended. We had many unhappy viewers as a result, and for that I am truly sorry.

This is what frustrates users the most. While it only takes moments, seconds maybe, to really screw up a user, it can takes days if not weeks to make things right. Again, it is great that Ustream took notice of the problem, but without proper plans in place to fix the problem right away, then what point is in even trying? At the time of this writing, there is still no indication that the account streaming the Hugo awards is back. If you're going to set up a system that can snuff out a stream in an instant, it seems only reasonable that you should be able to turn that stream back on.

Ustream has said that it has turned off Vobile for the time being, which is the right move. But perhaps it can use this as an explanation for why such solutions are overkill the next time the entertainment industry or the government come calling.

Hopefully, this serves as yet another example to lawmakers, policy makers, the entertainment industry and online service providers: as much as some of them think that automated copyright enforcement is a panacea, it can often create even more problems. Snuffing out a broadcast like this doesn't help make anyone respect copyright any more. It makes them think it's pointless and obsolete.